Posted by: Patricia Salkin | November 22, 2008

Curious Jury Verdict in Colorado “Big Box” RLUIPA Case

On one hand, the jury found that the Boulder County, Co. officials did not act in a discriminatory manner in violation of the constitution when they denied the request of the Rocky Mountain Christian Church to expand by almost doubling their size.  On the other hand, the jury found that the County denial violated the Church’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The jury did not award damages to the Church. Following a two week trial, it is not entirely clear who won the case and what the next steps will be.


Over the years, the Church has grown in physical size to meet the growing number of followers. The Church is located in an agricultural zone that allows churches subject to special use permit.  Between 1994 and 2003 the County approved five separate permit requests for these expansions giving the church more 100,000 square feet of space for worship services, a school, a daycare program and other uses.  In response to the Church’s request in 2004 to add 152,200 square feet (later reduced to 132,200) on their 54 acre parcel, in 2006 the County approved 10,000 a square foot addition to allow for more seating in the sanctuary for worship, but denied the rest of the request which would have allowed for, among other things, a gymnasium. The Church filed the instant lawsuit alleging a violation of, among other things, RLUIPA. A gnawing question is whether municipalities can regulate the size of places of worship like they regulate the size of every other use in the jurisdiction (including big box retail and square footage of residential uses).


The jury verdict is interesting for a number of reasons.  It is not entirely clear that RLUIPA was ever intended to afford greater protection than what the constitution already requires.  The jury’s finding of no discrimination should have ended the matter.  The jury went on, however, to conclude that the Commissioner’s denial imposed a substantial burden on the exercise of religion in violation of RLUIPA, leaving open the question of whether RLUIPA does indeed confer additional rights on religious groups.  One challenge is that the federal law does not define the term “substantial burden.”  State and federal courts have been left to interpret what this phrase means, and the most recent pronouncements seem to indicate that so long as the religious group is able to engage in religious exercise in the municipality, it is not a substantial burden where the municipality regulates location and size of the building based upon compelling governmental interests.  The compelling governmental interests in this case include the county’s comprehensive plan and anti-sprawl measures designed to protect public health, safety and welfare.


It is first up to the District Judge to decide what happens as a result of the verdict.  Should the Judge conclude that the County must allow the Church to expand on their current site as proposed, I suspect there will likely be a further appeal by the County…stay tuned.


For news articles on the verdict see:,0,466950.story


The Court’s March 2008 Order on the County’s summary judgment motion is available here.  An earlier 2007 Order can be viewed here.


For a discussion of how the courts have been defining “substantial burden” see here.


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